Richard M. Garbarini (RG 5496) G
ARBARINI
F
ITZ
G
ERALD P.C.
250 Park Avenue 7
th
Floor New York, New York 10177 Telephone: (212) 300-5358 Facsimile: (347) 218-9478
Attorneys for Plaintiff
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ------------------------------------------------------x BRYAN EICH, individually and on behalf of all other similarly situated copyright holders, Plaintiff, v. APPLE INC., Defendant. -----------------------------------------------------x Index No.: 17-cv-9857
ECF CASE COMPLAINT AND JURY DEMAND FOR DAMAGES FOR COPYRIGHT INFRINGEMENT AND UNDERPAYMENT OF ROYALTIES
Plaintiff BRYAN EICH, by and through his attorneys at GARBARINI FITZGERALD P.C., brings this Class Action Complaint and Jury Demand against defendant APPLE INC. based on defendant
’
s infringement of plaintiff
’
s and the Putative Class
’ copyrighted musical works
pursuant to the Copyright Act and Copyright Revisions Act, 17 U.S.C. §§ 101
et seq
. (the
“Copyright Act” or “Act”), and defendant’
s deliberate scheme to withhold royalties owed plaintiff and a Putative Class of copyright holders that received royalties.
NATURE OF THE ACTION
1.
Plaintiff EICH own the publishing rights to two copyrighted albums of music titled
Devil in Disguise
U.S. Copyright Registration No. SRu 925-601 and
Slreeping By A Wire
Case 1:17-cv-09857 Document 1 Filed 12/17/17 Page 1 of 17
U.S. Copyright Registration No. SRu 661-491, covering eighteen (18) musical recordings. This matter is brought on behalf of plaintiff and a putative class of independent artist who own the publishing rights to their copyrighted recordings (the
“
Putative Class
”
) to remedy defendant
’
s systematic infringement, and theft of royalties.
2.
Defendant owns and operates a services called Apple Music (f/k/a Beats Music) which is a subscription interactive music streaming service subject to Section 115 of the Act. Because the preceding product was at all times during the Class Period defined as December 17, 2014 to the present, covered by Section 115 of the Act, defendant was required to serve a Notice
of Intent to Obtain Compulsory License (“NOI”), in the form prosc
ribed by 37 CFR § 201.18, prior to distribution, or within one month of making available, each of plaintiff
’
s and the Putative Class
’
copyrighted recordings; defendant did not.
3.
Instead, during the Class Period defendant engaged in a systematic process of infringement by, inter alia: (i) making available and distributing plaintiff
’
s and the Putative
Class’ recordings without first serving an NOI; (ii) deliberately deleting stream information to
hide defendants systematic violation of plaintiffs exclusive rights under the Act; (iii) altering the streaming reports years after they were issued in order to hide the infringements; and, (iv) failing to serve some or all of the monthly and annual reports to conceal the infringements.
4.
The laundry list of frauds, and misdeeds, perpetrated by the defendant shocks the conscious. Defendant systematically infringed the copyrighted recordings of plaintiff and the Putative Class, while simultaneously engaging in an illegal scheme to reduce its royalty obligations in violation of the Copyright Act.
Case 1:17-cv-09857 Document 1 Filed 12/17/17 Page 2 of 17
PARTIES
5.
At all times material hereto, plaintiff BRYAN EICH (
“
EICH
”
) was, and is, an individual and resident of Mineola.
6.
Upon information and belief, defendant APPLE INC.
(“APPLE”)
is a California corporation with its principal place of business located at 1 Infinite Loop, Cupertino, California. During the Class Period, defendant has, inter alia: (1) failed to serve NOI
’
s for all independent artists, (2) failed to pay and changed the royalties owed to plaintiff and the Putative Class.
JURISDICTION AND VENUE
7.
The jurisdiction of this Court is based upon 28 U.S.C. §§ 1331 and 1338 in that this controversy arises under the Copyright Act and Copyright Revision Act of 1976 (17 U.S.C § 101 et seq.). This action is a civil action over which this court has original jurisdiction.
8.
On information and belief, a substantial part of the facts of infringement complained of herein occurs or has occurred in this district, and defendant is subject to personal jurisdiction in this district because they maintain a headquarters in this district located at 401 W 14th St., New York, NY 10014.
9.
Personal jurisdiction over defendant is proper in this Court on the grounds that defendant, through its interactive web-based subscription service, caused the unlicensed distribution of the plaintiff
’
s
and the Putative Class’ copyrighted recordings throughout the State
of New York, including within this judicial district.
10.
This Court has personal jurisdiction over defendants pursuant to CPLR § 302
(New York’s long
-arm statute) due to their continuous and systematic business activities within New York as described below. Defendant has conducted and do conduct business within New York. Defendant, directly or through intermediaries (including distributors, retailers, and
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